breaching or contravening a parenting order is very serious.
Parenting orders address the relationship between parents and their children, including such issues as where the children will live, how often the other parent will have contact with the children and the kind of contact that will be permitted. Unfortunately, not every parent follows a parenting order.
Depending on the nature of the breach, a good starting point is usually a discussion with the other parent about the reasons for the breach. If the problem can be solved by changing the terms of the parenting order, the court will expect you to try to reach an agreement.
If the parenting order has been in effect for less than a year, you will probably need to use a process of family dispute resolution to try to mediate your differences before asking the court to enforce the order.
If you cannot persuade the other parent to behave responsibly and if the problem cannot be solved by mediation, your remedy for the breach of a parenting order is to seek enforcement of the order in court. Some orders are easier to enforce than others.
Common breaches of parenting orders
There are a number of ways that parents can breach a parenting order. The appropriate response will depend on the nature of the breach.
If your parenting order requires you to make parenting decisions jointly with the other parent, there might be times when you have difficulty arriving at a decision that you both agree upon.
Mere disagreement is not a breach of the parenting order, although a bad faith refusal to negotiate might be. If you cannot come to an agreement on your own, try to resolve your differences through mediation.
A family law registry can inform you of the family dispute resolution services near you. You can also find information about family dispute resolution services by consulting Family Relationships Online.
If you cannot resolve a dispute through mediation, you can apply to the Family Law Courts to resolve the dispute by amending your parenting order.
If your parenting order permits you to have contact with your child at a particular time and the other parent consistently prevents you from having contact or interferes with your contact, your remedy is usually to obtain a contravention order. The procedure for obtaining a contravention order is discussed below.
If your parenting order permits the other parent to spend time with your child on a fixed schedule but the parent is always late picking up or returning the child, you can seek a contravention order. When it considers whether to make that order, however, the court might also consider changing the parent order to make it easier for the other parent to comply with its terms.
You and your child might agree that it would be best for the other parent to have contact with the child, but if the other parent refuses to do so, there is probably little that you can do beyond explaining to the parent how his or her behaviour is emotionally damaging for the child.
While the court can sanction the parent for disobeying the order, courts are often reluctant to force a parent to have unwanted contact with his or her child. The court will need to consider whether it is in a child’s best interest to spend time with a parent who is not interested in spending time with the child.
If a parent does not return a child after a scheduled contact ends and it becomes clear that the parent does not intend to return the child, you can ask the court for help by filing an Application in a Case.
If the parent is hiding the child, you can ask the court to enter a location order to compel the parent or others with knowledge of the child’s location to reveal that information.
If you know the child’s location, you can ask the court to enter a recovery order directing the parent to return the child or, if necessary, directing law enforcement authorities to recover the child. If the need for a recovery order arises after court hours, contact your local family law registry through its emergency telephone number.
If the other parent refuses to comply with a parenting order, you can seek a contravention order by filing an Application - Contravention in the Family Law Courts. You must also file:
- A copy of the order;
- An affidavit explaining how the order is being disobeyed; and
Unless the parenting order was made within the last 12 months, a certificate confirming participation in a dispute resolution process within the past 12 months or an affidavit of non-participation explaining why you have not participated in dispute resolution (for instance, because the need for court action is urgent).
Not all failures to comply with a parenting order constitute a contravention (or breach) of the order. Only intentional failures to comply will be deemed a contravention. If a parent has a reasonable excuse for not complying with the order, the court may decide not to enforce the order.
If the court finds that a parent contravened a parenting order without a reasonable excuse, the court can impose a remedy or a penalty. They include:
- Requiring the parent to attend a parenting program;
- Ordering the parent to compensate the other parent for time lost with the child or for expenses incurred due to the breach;
- Ordering the parent to pay the other parent’s legal expenses;
- Imposing a fine;
- Imposing a term of community service;
- Imposing a term of imprisonment.
The court can also decide to solve the problem by changing the parenting order.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.